Frost v Lowry. Dec, Term, 1816. IN BANK. But, if this be waived by the vendee, no other person has the right to complain, and such appears to us to be the case at bar. The bill was left, by the consent of Nathan L. Stout, with the attorney, subject to Stout's order, with the acceptance erased. What reason has either the plaintiff in error, Frost, or Rockhill the attaching creditor, to complain of this? They had neither property in, nor lien upon this acceptance, and Stout had the perfect right to waive its return, or to receive the bill without it, and the result, in our view, would be precisely the same-the rescission of the contract. But suppose this were not so - useless and idle ceremonies are neither favorites of the law, nor required by common sense; and if the withholding of the acceptance can, in no event, be of prejudice to Stout, its return is by no means necessary to enable the defendants in error to reclaim the property. From the evidence of David B. Stout, Eustaphieve was, doubtless, an accommodation acceptor, with no funds to meet this liability; and when the bill was returned, and the acceptance erased, the condition of Nathan L. Stout was no worse than with an accommodation acceptance in hand. t But, if the bill were in fact drawn upon funds in the hands of Eustaphieve, and accepted by him upon the strength of such funds, the erasure of the acceptance makes his (Stout's) condition no worse. No debt-no obligation has been discharged by the acceptance, without payment, and the acceptance being destroyed, the same funds remain, subject to Stout's order, in Eustaphieve's hands. 4 The case cited from 1 Metcalfe, 547, is by no means analagous to this. There, B bought goods of C, and gave in payment a note, with two forged indorsements upon it, but the name of the maker was not a forgery. The note was not tendered back, but assumpsit brought for the goods sold, and it was held the plaintiff could not recover, The case was doubtless correctly decided, for Bingham, the defendant, had the right to the return of the note, that he might avail himself of the maker's responsibility, whose name was genuine; and, Reed v. The State of Ohio. Dec. Term, 1846. without it, he was not restored to his original rights. But had IN BANK, the names of all the parties to the obligation been false, it is by no means certain its return would have been considered necessary, to enable the plaintiff to have recovered. Where nothing of value is received, nothing need be returned. Judgment Affirmed. JACOB REED vs. THE STATE OF OHIO. When the regular jury has been discharged, and there are cases yet undisposed of, the causes. On the trial of a person charged with passing counterfeit bank notes, it is competent to prove he has passed other counterfeit paper, without producing it, if it be out of the jurisdiction of the Court. The existence of a bank whose paper is alledged to have been counterfeited, may be proved by reputation. This is a WRIT OF ERROR to the Court of Common Pleas of Lucas county, made returnable before the Supreme Court for the county of Wood, and reserved for decision in full Bank. It appears from the record, that the plaintiff in error was tried at the July term of the Court of Common Pleas, 1846, for the county of Lucas, for uttering and publishing, as true and genuine, a counterfeit bank note, of the denomination of twenty dollars, on the Yates County Bank, knowing the same to be counterfeit, with the intent to defraud one Whittaker, &c. The record also shows his conviction and sentence to the Penitentiary for the term of six years. A bill of exceptions to the opinions of the Court is made a part of the record, from which it appears, that, the jury being called, the plaintiff in error challenged the array, and in sup Dec. Term, 1846. Reed v. The State of Ohio. IN BANK. port of such challenge, showed to the Court, that, on a previous day of the same term, the regular jury summoned in obedience to the statute was discharged, a new venire issued by order of the Court, and by virtue of which process the then jury was empanneled. Such challenge to the array was overruled by the Court. Evidence was then given, by the attorney for the State, tending to prove the passing of the bank note described in the indictment by the plaintiff in error. One Dobbin was then called as a witness, who testified that, on the same day with the passing of the bill to Whittaker, another note was passed to him by one Wood, in the presence of the plaintiff in error, and for their joint benefit; that said note was, on the day after the passing thereof, left by the witness with a magistrate at Detroit, in the State of Michigan, to be used in a prosecution against said Wood in that State; and that said Wood was convicted in September, 1845, and the bill remained in the hands of the proper authorities at Detroit. The witness was then asked by the counsel for the prosecution, by what bank said note purported to be issued, and whether or not said note was counterfeit. To this question the witness answered, giving a description of the bill, and his belief that the same was counterfeit. To the admission of this evidence, and the question proposed, the counsel for the plaintiff in error objected; but the objection was overruled, and exception taken. The attorney for the State then called a witness to prove that there was, by general reputation, such a bank as the Yates County Bank, located at Penn-Yan, in the State of New York. This was likewise objected to; but the Court permitted this evidence to go to the jury, and the counsel for the plaintiff in error excepted to this opinion. The counsel for the plaintiff in error then insisted that reputation alone was not sufficient evidence of the existence of the bank, without other proof, but the Court held otherwise; and this opinion of the Court was also excepted to. Reed v. The State of Ohio. On this record, the errors assigned are First: The ruling of the Court that the jury was properly empanneled. Second: That the Court permitted improper evidence to go to the jury. Third: That the Court erred in permitting evidence to be given to the jury, of the counterfeit character and contents of the note proved to be in the State of Michigan. Fourth That the Court erred in permitting evidence to go to the jury, of the general reputation of the existence of the Yates County Bank; and, upon these assignments, prays this Court to reverse the proceedings of the Common Pleas. Young and Waite, for Plaintiff in Error. First: We claim that the Court erred in permitting evidence to be given of the contents of the absent note, and of its counterfeit character. We do not claim but that evidence may, under certain circumstances, be given to the jury, of the possession by the prisoner of other notes of a similar description with that in the indictment; but to warrant such proof, the bills must themselves be produced, or their absence accounted for, as in other cases where secondary evidence is admissible. 2 Phil. Ev., Cowen and Hill's Notes, 464. The fact that the note in this case is in another State, does not change the general principle, certainly not without proving that some efforts have been made to obtain it. 3 Dess. Eq. Rep. 290, and the cases there cited, viz: Amber, 249; 3 Term Rep. 160; 1 Ves. sen. 234; Ibid. 387 and 503; 2 Ves. sen. 38. We see nothing in this case which should take it out of the general rule. Indeed, the reasons why the primary evidence should have been produced are peculiar. It was not simply the contents of the paper which were to be proven, but the ad ditional fact of its counterfeit character. This was matter of IN BANK. Dec. Term, 1846. Reed v. The State of Ohio. Dec. Term, 1846. IN BANK. opinion alone, which could only be proved from an inspection of the paper itself. But one witness was permitted to form that opinion. No opportunity was allowed to rebut his testimony. Surely, then, this is not a case in which to relax the rule. Second: The evidence of the existence of the Yates County Bank, by general reputation, was improperly admitted and was wholly insufficient for the purpose for which it was introduced. It was going much further than the case of Sasser v. The State of Ohio, 13 Ohio Rep. 453. That case only decided, that the existence of a foreign bank might be proved by those who knew it had an existence, from dealing with it or otherwise. But in the case at bar, the testimony was hearsay testimony in its simplest form, unattended with any of those circumstances which make it receivable in evidence in a court of justice. Henry Stanbery, (Attorney General,) for the State. First: The first error relied upon is, in the admission of evidence as to the note testified to by Dobbins. This witness stated, that on the same day of the passage of the note upon which the indictment was founded, another note was passed by one Wood, in the presence of the defendant and for their joint benefit, which note was also counterfeit. This other note was not produced at the trial, but it appeared that it had been made the foundation of a prosecution against Wood in the State of Michigan, and was filed in that case - which case had resulted in Wood's conviction. There is no question, that the passage of other counterfeit paper, about the time of the passing of the paper on which the indictment is founded, is proper to establish the scienter. The objection made is only for its non-production. I doubt very much if, in any case, it is necessary to produce the note in order to let in such proof, for, it seems to me, the rule as to primary and secondary evidence does not apply. |